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Lauren Oswald v. Herbert Gibbons and City of Philadlphia

May 27, 2011

LAUREN OSWALD,
PLAINTIFF,
v.
HERBERT GIBBONS AND CITY OF PHILADLPHIA, DEFENDANTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This case arises out of Lauren Oswald‟s allegation that she was subject to gender- and race-based discrimination at her job as a Philadelphia police officer. On the basis of this discrimination, plaintiff asserts claims against her former supervisor Sergeant Herbert Gibbons and the City of Philadelphia ("the City") under 42 U.S.C. § 1983 ("Section 1983"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq.

Defendants have moved to dismiss plaintiff‟s Amended Complaint. For the reasons discussed below, defendants‟ motion is granted in part and denied in part. Specifically, the claims asserted in Counts I and II, by agreement, are limited to Gibbons. Count III, plaintiff‟s Monell claim, is not dismissed. The claims in Count IV against Gibbons are dismissed, and the claims in Count IV against the City are limited to those arising out of failure to provide timely and accurate court notices. Count V is dismissed in its entirety.

II. BACKGROUND*fn1

Oswald joined the Philadelphia Police Department ("the Department") in 2002. (Am. Compl. ¶ 13.) In 2007 Gibbons became Oswald‟s supervisor. (Id. ¶ 15.) Plaintiff alleges that, beginning at that time, Gibbons made unwanted sexual advances toward her. (Id. ¶ 16-18.) In January 2008 and again in April 2008, Oswald requested to be transferred to a different unit. (Id. ¶¶ 18-20.) Both of these requests were denied. (Id.)

Oswald alleges that after these transfer requests, Gibbons began to discriminate against her more actively by, inter alia, issuing her written reprimands for being late, even though other officers were not reprimanded for the same behavior. (Id. ¶ 23.) Plaintiff further avers that on April 11, 2008, while she was sitting at her desk, Gibbons reached for a desk drawer "skimming Plaintiff‟s crotch area." (Id. ¶ 25.) The same day, Oswald reported the alleged sex and race discrimination to two lieutenants and the captain of her district and again requested a transfer out of the district. (Id. ¶ 26.) Plaintiff contends that this complaint was not investigated, and her request for a transfer was denied.

Plaintiff also filed a complaint with the Department‟s internal EEO unit alleging harassment and employment discrimination based on her race and her sex. (Id. ¶ 27.) She avers that after filing this EEO complaint she was subject to retaliatory treatment, including being improperly added to the sick abuse list and being deprived of correct and timely notices of her scheduled court appearances. (Id. ¶¶ 30, 35.)

Presently before the Court is defendants‟ Motion to Dismiss Plaintiff‟s Amended Complaint. The motion is fully briefed and ripe for review.

III. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff . . . ." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations omitted).

"To survive a motion to dismiss, a civil plaintiff must allege facts that "raise a right to relief above the speculative level . . . .‟" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff‟s allegations must show that defendant‟s liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are "merely consistent with‟ a defendant‟s liability, it "stops short of the line between possibility and plausibility of entitlement to relief.‟" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court utilized a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court then assesses "the "nub‟ of the ...


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